IN THE SUPREME COURT OF NIGERIA
ON FRIDAY, THE 22ND DAY OF MAY 1970
ALABI SHITTU ................................................... APPELLANT
THE STATE ..................................................... RESPONDENT
BEFORE: Lewis, Madarikan, Fatai-Williams, JJ.S.C.
Criminal Law-Homicide-Murder-Summing up-Undesirable for trial Judge to express his views on the evidence too freely-Yet where he comments he must warn the jury they are not bound to accept his views-Provided he does not overawe the jury and leaves the issues to them to decide he may do so.
Criminal Law-Homicide-Murder-Summing up-Judge describing evidence of accused "very flimsy"-Whether objectionable in the context of his full summing up.
Appeal from the High Court (Lagos).
(1) It is undesirable for a trial Judge when summing up to express his views on the evidence too freely, yet if he nonetheless does comment then he ought to warn the jury that they are not bound to accept his view but provided he does not in fact overawe the jury and leaves the issues properly to them to decide he may do so.
(2) In this case the sole comment of the trial Judge that the evidence was "very flimsy" could not be said to have overawed the jury to such an extent that they must have accepted his view and he did leave the issue to be determined by the jury. His comment was not objectionable when looked at in the context of his full summing up on the issue of self defence.
(3) Although there was a technical error in his summing up in referring to the denied confession as the evidence of the accused, nonetheless there was no possible miscarriage of justice.
Cases referred to:
R. v. Frampton (1917) 12 Cr. App. R202.
Abioro v. The State SC. 169/1969 of 13th March, 1970.
Queen v. Itule (1961) All N.L.R. 462.
R. v. Phillip Kanu and anor. 14 W.A.C.A. 30.
R. v. Sapele and anor. 2 F.S.C. 24.
Broadhurst v. The Queen (1964) 1 All E.R. 111.
Appeal from the High Court (Lagos).
Cole (with him, Akinola) for the appellant.
Ejiwunmi (Ag. Senior State Counsel) for the respondent.
Lewis, J.S.C. (delivering the judgment of the court):-On the 30th July, 1969, a jury found the accused guilty of the murder of one Alfa Buari at Agege on the 15th of September, 1968, in Charge No. IK/12C/69 in the Ikeja High Court and Beckley, J. then sentenced him to death. His appeal against that conviction was dismissed by us on the 6th May, 1970 and we now give our reasons for so doing.
Mr Cole who appeared for the appellant argued one ground of appeal which read-
"In directing the jury on the defence of the appellant the learned trial Judge erred by describing as 'very flimsy' the evidence of the appellant on his (appellant's) defence of self-defence. By this direction the learned trial Judge did not leave the facts of the case to the decision of the jury."
Mr Cole submitted that whilst the learned trial Judge in his summing-up to the jury rightly left the issue of self-defence to the jury he wrongly when so doing said-
"If in this case you accept the evidence of the accused, and that evidence is very flimsy, that he was set upon by so many people and in order to defend him from being mobbed or killed he inflicted a fatal blow on Alfa Buari, then that homicide will be justifiable."
He submitted that it was wrong for the learned trial Judge to express his view so strongly as to say that the evidence was "very flimsy" and that as a result this overawed the jury and made them return a verdict which they would not otherwise have done, and he relied on R. v. Frampton (1917) 12 Cr. App. R. 202 where the court of Criminal Appeal in England quashed a conviction because the summing-up "puts the case so strongly against the prisoner", but there in his summing-up the learned trial Judge had said inter alia-
"He said, 'The prisoner of course gives you a suggestion that he was going around with a commercial traveller, and it is attempted to be bolstered up by the boy Dunford. Dunford is evidently lying, and I warn you not to accept his evidence. His evidence is not worth two pence. He is a liar. He has committed purjury in that box, and he is liable to penal servitude for what he has done. I think that the identification in his case is very complete, and that the attempt to corroborate the prisoner's story has failed. It is open to you to find a verdict of not guilty if you can bring it to your consciences to do so.'",
and that was putting the case very much more strongly against the accused than the present one. Mr Cole however also relied on the recent decision of this Court in Abioro v. The State SC. 169/69 of the 13th of March, 1970, where dealing with a trial by judge and jury we said-
"Although a judge is entitled to express himself on the evidence before him, we are of the view that it is much safer if he refrained from expressing his own opinion strongly on such matters as are relevant to the facts or issues in the matter."
Now it is necessary to bear in mind here that the prosecution case was that the accused stabbed the deceased with a knife and the learned trial Judge ruled in his summing-up that there was no question of provocation to go to the jury and that direction has not been challenged before us. The accused in his evidence at the trial denied that he stabbed the deceased at all, and maintained that the stabbing occurred when he was attacked by a group of Ilorin people and that in the course of the incident one of those attacking him stabbed a man who was on top of him. The accused further in his evidence denied that he had ever made the statement that the learned trial Judge had admitted in evidence as exhibit G1. That statement had said-
"Since 1961 this fight had started between myself, this woman and her townspeople. I do not know the names of her town's people who came and beat me up in my house. I have no witness to come and say that it was true that all Ilorin people who are in this area, Agege always come and beat me up inside my house. Yesterday, as I was inside my house, I saw these Ilorin people came into my house and started to beat me up. As they were beating me up like this, then I took up a knife and stabbed one of them. As I stabbed one of them, the rest ran away. When they went and reported me to police, and I was taken to court, but the magistrate left them, made me not to go and report for police again, and that was why I stabbed one of them. This man was a beggar, but he is not blind. This man was Alfa. From the meeting of Ilorin people these men came and met me inside my house before they started beating me up. When there was no other place for me to pass and go away made me stab one of them with knife."
Notwithstanding the fact that the accused had denied making his statement we think that the learned trial Judge was right to leave the issue of self-defence to the jury, as that was an issue that arose from that statement, having regard to the Queen v. Itule  All N.L.R. 462 where at page 465 it was said by Brett, Ag. C.J.F. in the Federal Supreme Court-
"The judge referred to exhibit E in his judgment, and to the fact that it had been 'retracted', by which he presumably meant that the appellant had denied ever making it, but by an unfortunate omission he failed to record any finding on the question whether the appellant had in fact made it. A confession does not become inadmissible merely because the accused person denies having made it, and in this respect a confession contained in a statement made to the police by a person under arrest is not to be treated differently from any other confession: R. v. Phillip Kanu and anor. 14 W.A.C.A. 30. The fact that the appellant took the earliest opportunity to deny having made the statement may lend weight to his denial: R. v. Sapele and anor. 2 F.S.C. 24; but it is not in itself a reason for ignoring the statement. When considering whether there was evidence of provocation we must, in the absence of a finding that exhibit E was not the appellant's statement, give him the benefit of assuming that it was his statement."
In our view however it is necessary to look at the sentence in the summing-up, to which Mr Cole objects, not in isolation but in its proper context and dealing with the issue of self-defence the learned trial Judge in fact said-
"The second story is that which emanates from the statement of the accused which I have already read to you in which the accused admitted that he stabbed the victim during a scuffle or a fight in which several people attacked him. Killing by fighting may either be murder or manslaughter or homicide in self-defence according to circumstances. If two persons quarrel and afterwards fight and one of them kills the other, in such case if there is intervening period between the quarrel and the fight and sufficient cooling time for passion to subside and reason to interpose the killing will be murder, but if such time has not intervened and the parties in their passion fought immediately or if immediately upon the quarrel one died, the killing in such case would be manslaughter. Even in the case of sudden quarrel when the parties immediately fight the case may be attended with such circumstances as will indicate guilt on the part of the party killing and the killing would then be murder and not merely manslaughter. In regard to self-defence, if two men fight upon a sudden quarrel and one of them after a while endeavours to avoid any further struggle and retraces as far as he can until at length no means of escaping his assailant remains to him, and then turns round and kills the assailant in order to avoid destruction, then this homicide is justifiable as being committed in self-defence. If in this case you accept the evidence of the accused, and that evidence is very flimsy, that he was set upon by so many people and in order to defend him from being mobbed or killed he inflicted a fatal blow on Alfa Buari, then that homicide will be justifiable.
Members of the jury, is it possible that the story of the accused can be true. Would you accept his story that a group of people who have no axe to grind in the matter of the estates of Shittu Oyeyemi ganged themselves up to kill the accused, or to be killed, for when one goes to war it is either to kill or to be killed. That group, members of the jury, included the lame and the blind man and both are beggars. The attack was in broad day light. It is only if you accept that story that you can proceed to consider whether the defence of self-defence is open to the accused."
Whilst we agree with Mr Cole that the use of the words "the evidence of the accused, and that evidence is very flimsy" could not in fact legally refer to the statement of the accused which he denied making as that was put in as part of the prosecution case and was not his evidence, nonetheless the jury in the context must have understood the words to be referring to the statement of the accused.
The issue solely therefore is whether the learned trial Judge was entitled to comment on the evidence and to use the words "very flimsy". As we said in Abioro's case (supra) it is undesirable for a trial Judge when summing-up to express his views on the evidence too freely, yet if he nonetheless does comment then he ought to warn the jury that they are not bound to accept his views but provided he does not in fact overawe the jury and leaves the issues properly to them to decide he may do so. Cf. Broadhurst v. The Queen  1 All E.R. 111 per Lord Devlin at page 124. Here unlike in Abioro's case we do not think that his sole comment that the evidence was "very flimsy" could be said to have overawed the jury to such an extent that they must have accepted his view and he did in our view leave the issue to be determined by the jury. They had undoubtedly to bear in mind that the accused in the witness box denied the statement and maintained that he never stabbed the deceased at all and that issue was very fully and properly put to the jury in another part of the summing-up. It was only if they believed the denied confession that any issue as to self- arose as it did not come from the evidence of any of the prosecution witnesses or from the accused when in the witness box. In the circumstances we are satisfied that the comment of the learned trial Judge was not objectionable when it is looked at in the context of his full summing-up, which we have quoted, on the issue of self-defence. Although there was a technical error in his summing-up, as we have said, in referring to the denied confession as the evidence of the accused, nonetheless there was in our view no possible miscarriage of justice and we accordingly dismissed the appeal.